Tag Archives: evaluations

In New Jersey, as in most jurisdictions, the court must consider whether or not a child would be subjected to abuse or neglect in the care of any parent seeking legal and physical custody of the child. Consequently, the outcome of an abuse or neglect case brought by DCPP can be very significant for custody litigation. When a parent has been found by the agency or a court to have abused or neglected child, however, that finding is not dispositive of the custody issue.

Here are a few points to consider when contesting custody, after a finding of abuse or neglect has been made:

1. An agency finding without court intervention can, and often does, indicate an isolated incident that is of no further concern to the agency. Pursue an administrative appeal, if for no other reason than to alert the custody court that you contest the agency finding.

2. The court finding often occurs long after the problem has been remediated. Many times an allegation of abuse and neglect does not reach a fact-finding stage for many months, even a year, into the case. By that time, services have been offered to the family and the problem has resolved.

3. If abuse or neglect allegations arise during the pendency of a custody case, parents’ financial resources often limit them to litigate in only one forum. The parent may stipulate in order to get rid of the agency case and invest resources in the custody case.

Further, the agency is often more willing to be lax in its involvement with the family if the parent stipulates to expedite the process. However distasteful that may be, the reality should be addressed with the custody court so as not to prejudice a litigant seeking custody.

4. The broad, amorphus definition of neglect often makes less-than-perfect parental behavior a violation of law. Many times, parents can persuade the agency to change its finding if the facts of a contentious divorce are fleshed out in a custody case while the abuse and neglect case is ongoing.

5. Sometimes, both parents have engaged in some form of abuse and neglect; however, only one parent is accused and has a finding made against him. That does not prevent the other parent from filing his own Title 9 complaint or raising allegations of abuse or neglect in the custody case. The fact that the agency did not accuse the adverse party of abuse or neglect does not negate its existence.

In sum, do not assume that a finding by DCPP ends the custody case. Many times, it is merely an unfortunate blip on the radar screen that must be explained through custody and parenting time evaluations, custody mediation and trial.

For more information, please feel free to contact us and schedule a consultation.

Parents often ask me why the non-offending parent is listed as a defendant when the State of New Jersey, vis-à-vis the Division of Child Protection and Permanency (DCPP), formerly known as the Division of Youth and Family Services (DYFS), files a lawsuit in court. The answer is simple. Because the state is seeking relief against the parents, whether that parent has done anything wrong or not.

Usually, in these cases the division is looking for the court to order the parents to call operate with services for the child who has been allegedly abused or neglected. Both parents have a right to be heard and to oppose any such relief as to their child.

Of course, this raises an important irony. When the court has jurisdiction over the child, which occurs as soon as the division files an action, services are routinely ordered for the child. This may include evaluations, therapy, mentors, school assistance, Financial assistance, etc. If a parent were inclined to oppose such “services”, what would be the end result? With rare exception, the parent’s opposition would be noted, but not honored, and services would be ordered in any event.

We do have the recent case of the New Jersey Division of Youth and Family Services vs. T.S., Which cautions the trial court against ordering services simply because they are “routinely ordered”; However, those services are related to the parent – not the child.

In reality, the state wants the parent to participate in the litigation – whether they are the cause of it or not – as they will be required to implement any services for the child, Including, for instance, transporting the child to therapy, assisting the child with any tutoring or mentoring that is provided for the child, giving background information to any professionals performing evaluations, etc. And, if nothing else, the non-offending parent will want to know what is being alleged as to his/her child.

Non-offending parents should use their participation in the litigation for its intended purpose of facilitating a resolution of issues impacting the child. For any litigation that follows the child welfare case, the parent will then be armed with information about the welfare of the child that may bare upon issues of custody, parenting time, and related issues.

Ever notice how every case filed by the Division of Youth and Family Services (DYFS), n/k/a the Division of Child Protection and Permanency (DCPP) kicks off with a Complaint and a request for supervised visitation? Does anyone ever question the need for supervision at the initial filing? Of course not, you may be thinking. After all, why would DYFS (DCPP) be involved with the family if there was no need to monitor the actions of the alleged child abusers, right?

Sadly, the allegations made in these cases often come partnered with the assumption that parental supervision is required. But is that always true? What about the case where a father is accused to acts of domestic violence against a mother in the presence of a child but never any infliction of harm against a child? Presumably if the “harm” to that child is witnessing domestic violence, how likely is that harm to reoccur if the parents are not together when in the presence of the child?

And what about cases in which a parent has a substance abuse problem, but the parent’s relatives all confirm that she has never used or abused substances in the presence of the children? Can that parent really not be trusted to have unsupervised dinner visits with the children, especially if she must blow into a breathing device installed on her vehicle to confirm she is “dry” before operating it?

How about the case where a step-parent is accused of being unduly harsh toward a step-child but no such allegation exists as to his natural children? Can he really not be trusted to be alone with his children against whom there is no allegation?

Unfortunately, the DYFS/DCPP “script” is to request supervision; however, the Division’s Field Operations Manual clearly provides that visitation is to be LEAST RESTRICTIVE option available to ensure child safety, and where supervision is requested, the rationale for the request must be set forth with specificity. DYFS rarely goes “off script”, and as a result, Superior Court judges rarely go “off script”.

But placing the impediment of plastic, short-term parental restriction upon a parent who is already being overwhelmed by the panoply of testimony, evaluations, monitoring and worse, usually does more harm than good in the “altruistic” world of social work. It creates barriers to collaboration between the State and the parent to remedy the harm alleged to impair parenting. And, isn’t that why the action is being filed in the first place?

As defense counsel, it is our job to argue against supervision. Never concede that supervised visitation is warranted on the facts presented. Be creative in fashioning the “least restrictive” alternative. Stop assuming that the Division will prevail in its quest for supervision, and perhaps, one day, it will not.